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State of New Jersey v. Kimberly S. Alvarez

October 17, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIMBERLY S. ALVAREZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-01-0175.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2011

Before Judges Fisher and Baxter.

Following a trial by jury, defendant Kimberly S. Alvarez was convicted on charges of second-degree official misconduct, N.J.S.A. 2C:30-2(a) (count one); and third-degree theft by deception, N.J.S.A. 2C:20-4 (count two). On count one, the judge sentenced defendant to a seven-year term of imprisonment, subject to the five-year mandatory parole ineligibility term required by N.J.S.A. 2C:43-6.5(a). Count two was merged with count one. The sentence was ordered to be served concurrently with the sentence on indictment no. 06-12-2704, for which defendant had entered a negotiated plea of guilty.

On appeal, defendant raises the following claims:

I. THE SENTENCE IMPOSED IMPROPERLY AND UNLAWFULLY APPLIED A PERIOD OF PAROLE INELIGIBILITY AS THE STATUTE PROVIDING FOR SUCH WAS CHANGED DURING THE PERIOD OF TIME COVERED BY THE INDICTMENT AND NO FINDING OF FACT WAS MADE BY THE JURY AS TO WHEN THE COURSE OF UNLAWFUL CONDUCT BEGAN AND ENDED.

II. THE TRIAL COURT IMPROPERLY PRECLUDED THE DEFENDANT FROM INTRODUCING EVIDENCE TENDING TO DEMONSTRATE THE STATE'S WITNESSES LACKED CREDIBILITY.

III. THE TRIAL COURT IMPROPERLY ALLOWED TESTIMONY REGARDING A SUPPOSED ROMANTIC RELATIONSHIP THE DEFENDANT HAD WITH A DEFENSE WITNESS'S SUPERVISOR.

We reject the claims defendant advances in Points II and III, and affirm defendant's conviction. As to Point I, we agree with defendant's argument that nothing in the judge's instructions to the jury, and nothing in the wording of the verdict sheet, demonstrates that the jury necessarily concluded that defendant had engaged in any unlawful conduct after April 14, 2007, which is the date the mandatory five-year parole bar of N.J.S.A. 2C:43-6.5(a) became effective. We therefore remand for resentencing, at which time the judge shall eliminate the five-year parole ineligibility term.

I.

From July 21, 2006, to June 30, 2008, defendant was employed by Howell Township (Township) as a clerk-typist in the Office of Housing and Code Enforcement. Among other tasks, she was responsible for processing applications from Township residents or realtors seeking certificates of occupancy, and permits for fences and signs. Application fees were paid either in cash or by check. The procedures in the Code Enforcement Office required the clerk-typist to collect the application fee from each applicant, and to issue a handwritten receipt from one of the sheets in the "receipt book," with a copy of the receipt remaining in the receipt book.

The fees paid in cash were kept in the clerk-typist's desk drawer, until such time as the clerk-typist entered the data into a spreadsheet showing the block and lot number, and sent the fees "off to [F]inance." In addition to the clerk-typist, six other employees in the office had access to the drawer where cash application fees were kept. When the homeowner or business completed the work that was the subject of the application, the clerk-typist scheduled an appointment for Patricia Hoover, the Township's Chief Housing Inspector, to inspect the premises.

With defendant's retirement date of June 30, 2008 approaching, a new clerk-typist, Maureen Bridget Kosinski, began work on June 23, 2008; defendant trained Kosinski and explained the fee collection procedures. In late summer 2008, after defendant had retired, a Township resident asked Kosinski for a refund of a cash payment for an application he had made during the time of defendant's employment. While attempting to process the refund, Kosinski discovered that although the receipt book contained a copy of the receipt defendant had issued for the cash payment, the transaction had not been entered into the spreadsheet, nor had the cash payment been sent to Finance when a deposit was made for the relevant time period.

After becoming aware of that discrepancy, Kosinski reviewed all of defendant's receipt books and compared them to the spreadsheets defendant had prepared. Kosinski concluded that more than $17,000 in fees had been accepted during defendant's tenure but not deposited. A subsequent forensic audit performed for the Township by Jeffrey Filiatreault supported Kosinski's conclusion.

Filiatreault met with Detective Robert Ortenzi of the Township's police department to report his finding that defendant committed 256 thefts of cash application fees from July 25, 2006 through June 30, 2008. Detective Ortenzi contacted the Monmouth County Prosecutor's Office and turned over the results of his investigation to Detective Arnaldo Maestrey. Maestrey concluded defendant had stolen approximately $17,155 between July 21, 2006 and June 29, 2008. Defendant was charged and indicted.

Shortly before the trial began, the State filed a motion in limine seeking to exclude evidence of a civil suit filed by Hoover against the Township, in which Hoover alleged a violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8. The State argued that the civil litigation filed by Hoover was irrelevant, and therefore inadmissible pursuant to N.J.R.E. 401, and that even if marginally relevant, was excludable pursuant to N.J.R.E. 403 because such evidence would mislead the jury, confuse the issues and consume an undue amount of trial time. The State further argued that even though defendant had offered to "limit the information" she intended to produce about Hoover's lawsuit against the Township, the State would be required to call "numerous" rebuttal witnesses, which would "create a minitrial within the . . . criminal trial."

In opposition to the State's in limine motion, defendant argued that her co-workers' awareness that she intended to testify on behalf of Hoover in Hoover's civil suit against the Township, had given her co-workers a motive to "frame" her in order to destroy her credibility as a witness for Hoover. In support of that argument, defendant pointed to the fact that Hoover had heard a co-worker stating that if defendant were a convicted felon, she would not be able to testify on Hoover's behalf. From this, defendant argued that other Township employees had a "motive" to "get[] her framed for this crime and potentially convicted [so] she cannot testify in [Hoover's] civil case ...


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